Title: Gone away post and Telephone calls
Legislation: DPA
Subject area: Finance
Inaccurate Information - receiving mail at your address in someone else's name.
There are circumstances when individuals will receive mailings to their address but the addressee has never or no longer lives there.
In these cases we would consider this to be a compliance issue. The data in question doesn’t identify the complainant albeit the information is incorrect (and would therefore be a P4 issue).
In these circumstances we would ask the complainant to contact the organisation in writing to inform them of the inaccuracy.
The DC should then mark their records appropriately to indicate that no further mailings should be sent to the address held.
The DC can't delete or change the address details as they are receiving notice of the inaccuracy from a third party and not the individual directly.
Inaccurate Information - receiving telephone calls for someone else - usually from debt collectors
In this situation the householder would need to raise the issues in writing with the organisation concerned. The organisation should then mark their records appropriately to indicate that no further telephone calls should be made to that number.
The organisation can't delete or change the telephone details as they are receiving notice of the inaccuracy from a third party and not the individual directly.
If the Consumer Credit Act requires that certain communications are sent to a customer’s last known address, then doing so will not breach the Data Protection Act. See full policy guidance below:-
Consumer Credit Act requirements
The Consumer Credit Act 2006 amended the Consumer Credit Act 1974 and introduced new requirements in respect of:
· Annual statements under fixed-sum credit agreements. (s6 CCA06 / s77A CCA74 requires these to be
sent).
· Additional information in statements for running-account credit (which in accordance with s78 CCA74 must be sent annually as a minimum, or whenever interest is charged or a payment is required from the
debtor).
· Notices of sums in arrears under fixed-sum credit agreements. (s9 CCA06 / s86B CCA74 states they
must be sent 6-monthly as a minimum).Notices of sums in arrears under running-account credit
agreements. (s10 CCA06 / s86C CCA74 states these can be incorporated with statements).
· Notices of default sums. (s12 CCA06 / s86E CCA74 states these can also be incorporated with statements).
· Additional information in default notices.
· Notices relating to post-judgment interest.
For all of the above notices, the CCA 2006 gives no timescale as to how long lenders can continue to send them.
Breaches of the requirements usually result in the lender being unable to enforce the agreement for the period for which they are in breach.
The Consumer Credit (Information Requirements and Duration of Licences and Charges) Regulations 2007 set out the content and forms of wording to be included in the statements and notices required by the CCA 2006, together with setting out the required form of the statements themselves. They came into force on 01 October 2008.
Sending CCA-required correspondence to last known addresses
Crucially, in relation to all the above, s176 of the CCA 1974 applies. This states that:
“176 – (3) For the purposes of this Act, a document sent by post to, or left at, the address last known to the server as the address of a person shall be treated as sent by post to, or left at, his proper address”.
The following will hopefully elaborate and clarify further.
The fourth principle of the DPA
Whilst it is of course a relevant principle, we would not expect there to be a breach of principle four in most similar cases. To decide whether the address information is inaccurate or out of date, we would have to consider what the lender purports the information to be. Where the lender purports the address to be a ‘last known address’ (because they are aware that the address is not current) then this in itself is accurate and up to date. Even if the address details are deemed inaccurate, the fourth principle does allow for inaccurate or out of date data to be held, depending on the purpose for which it is used. In the case of debtors, in the absence of current address details, out of date address details are relevant for the original purpose of enforcing the credit agreement (as sending to a last known address allows lenders to fulfil their obligations under the CCA and therefore to continue to enforce the agreement).
The seventh principle of the DPA
This principle is also relevant in such cases as sending CCA-required correspondence to last known addresses does create a security risk of potential disclosure if the envelope is opened by the current occupant. Since October 2008 increased amounts of debtor personal data are required to be sent under the CCA, even to last known addresses, thus increasing the severity of that risk. It is true that the envelope should be sealed and that if the current occupant is not the addressee then they should not open it anyway, and could be committing an offence by doing so, but the reality is that people do open such letters (perhaps inadvertently, or to ascertain who the sender is in an attempt to stop the letters being sent).
For the above reasons, we would suggest that both principles are relevant. Although the risk with regard to the seventh principle is only a potential one, it does have the potential for causing detriment to the data subject, especially if the current occupants of their previous address are known to them, or indeed the current occupant decided to use the details fraudulently.
In summary, as long as lenders act appropriately in recording debtor addresses as out of date when informed as such, make reasonable efforts to trace the debtor’s correct address and thereafter send only those notices and statements required by the CCA, containing the minimum information required by the CCA, we cannot maintain that a breach of the DPA has occurred.